FILED
NOT FOR PUBLICATION NOV 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL DELONGIS, No. 08-17143
Petitioner - Appellant, D.C. No. 3:06-cv-04236-PJH
v.
MEMORANDUM *
DERRICK L. OLLISON, Warden,
Ironwood State Prison,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted August 6, 2012
San Francisco, California
Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and
KORMAN, Senior District Judge.**
Michael DeLongis (“DeLongis”) was sentenced to 23 years to life for second-
degree murder and corporal injury to a spouse. He appeals the denial of his habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
corpus petition. DeLongis alleges that his due process and fair trial rights were
violated by the state trial court’s failure to provide voluntary intoxication and mental
disorder instructions. He argues that, absent these alleged errors, he would have been
convicted of manslaughter, not second degree murder.
Under California law, DeLongis could be convicted of murder if the jury found
he killed his wife with implied malice. Cal. Penal Code §§ 187-88. Malice is implied
“when no considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.” Cal. Penal Code § 188. Implied
malice also exists if the defendant “actually appreciated the risk of his actions.”
People v. Superior Court, 183 Cal. App. 4 th 690, 697 (Cal. Ct. App. 2010); accord Ho
v. Carey, 332 F.3d 587, 592 (9th Cir. 2003).
Even if DeLongis was entitled to the jury instructions, we agree with the district
court that the alleged errors didn’t have a “substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)
(internal quotation marks omitted). DeLongis’s actions and testimony show that he
acted with implied malice. The attack was provoked only by his wife insulting him
and threatening divorce during an argument. DeLongis testified that he felt hatred
when he kicked her down the stairs. His ill-will persisted as she tumbled, and he
followed to smash her head into a wall and then repeatedly on the floor. Finally,
2
DeLongis killed his wife by strangling her, understanding that doing so would, in his
words, “stop her breathing.” Under California law, “‘homicide by strangulation
indicates malice.’” Shackleford v. Hubbard, 234 F.3d 1072, 1079 (9th Cir. 2000)
(alterations omitted) (quoting People v. La Vergne, 411 P.2d 309, 313 (Cal. 1966)).
Because the alleged instructional errors didn’t substantially and injuriously
influence the jury’s verdict, DeLongis isn’t entitled to habeas relief. Brecht, 507 U.S.
at 638.
AFFIRMED.
3